The latest innovation in litigation is a district court administrative stay. Traditionally, circuit courts have issued administrative stays to pause a lower court injunction. In other words, the appellate court is staying some lower-court ruling. But in recent weeks, several district courts have issued administrative stays. Stays of what you might ask? Stays of some executive action. This nomenclature is a perversion. Courts stay judicial rulings and enjoin government actions. Courts cannot stay an executive order or statute anymore than an appellate court can enjoin a lower court.
Such an administrative stay sounds an awful lot like a TRO. But these stays have been granted without regard to likelihood of success on the merits. These judges have simply granted administrative stays to "maintain the status quo." At least in theory, these temporary stays are meant to give the court adequate time to resolve a complex issue. What is the basis for such an administrative stay? If there is such authority, it has to be the All Writs Act. But I am still uncertain on this point.
Now, there is a new innovation. President Trump removed Hampton Dellinger, the Special counsel of the Office of Special Counsel (and son of the late, great Walter Dellinger). On February 10, Judge Amy Berman Jackson (DDC) granted an administrative stay to block the removal for a few days. The Trump Administration tried to appeal that administrative stay. On February 12, Judge Jackson ruled that such an appeal is "frivolous," she retains jurisdictions, and now enters a TRO.
